Tom Brady lawsuit: If New England Patriots QB wins in federal court, he can thank...Roger Goodell?

Updated August 21, 2015 at 8:58 AM;Posted August 21, 2015 at 7:00 AM

Tom Brady suit.jpg

New England Patriots quarterback Tom Brady arrives at federal court, Wednesday, Aug. 12, 2015, in New York. Brady and NFL Commissioner Roger Goodell are set to explain to a judge why a controversy over underinflated footballs at last season's AFC conference championship game is spilling into a new season. (AP Photo/Mary Altaffer)

The fact that the NFL has a chance at winning in federal court is a testament to just how badly it gamed the Players Association when the collective bargaining agreement was signed in 2011.

The fact that Tom Brady and the NFLPA have a reasonable shot is a testament to just how badly Roger Goodell and the league's attorneys have bungled even the simplest of tasks in their hunt to nab the reigning Super Bowl MVP.

Judge Richard Berman, in charge of Brady's fate barring a settlement, clearly sees the gaping holes in the Wells Report and the suspect agenda in the league office. Last week represented a huge public relations victory for Brady, as did Wednesday's proceedings. As this case develops, as Berman prods and pokes and, really, embarrasses the NFL, this much is becoming clear: If Tom Brady wins in federal court, the NFL office will have reached unprecedented levels of ineptitude. Because if Tom Brady wins, the victory will probably be awarded via an avenue that Goodell personally paved.

The CBA can cover up many flaws in the NFL's case. It's outrageous to think football deflation falls closer in line to an "integrity of the game" violation (examples listed in the CBA include gambling, throwing a game and PEDs) than it does an equipment violation (examples listed include stickum use). Still, the generic language in the collective bargaining agreement, and even in the Player Policies referenced by the NFLPA, allows the commissioner extreme flexibility in doling out punishment. The CBA then allows Goodell to review his decision as an arbitrator, and federal courts give extreme deference to arbitration awards. The system is designed for Goodell to win.

Except the system does not protect Goodell from himself, and that may be all Tom Brady needs.

One highlight from Wednesday's court hearing was Berman's interest in the NFL's refusal to allow Jeffrey Kessler and the NFLPA to question league attorney Jeff Pash during Brady's June 23 appeal hearing.

According to Tom Curran of Comcast SportsNet, Berman asked NFL counsel Daniel Nash, "What's the problem having [Pash] testify? He edited the Wells Report. Nobody else edited the Wells Report. He was the co-lead on the investigation with Mr. Wells."

There are four grounds for vacatur, and this seems to fall squarely under No. 3.

1). where the award was procured by corruption, fraud, or undue means;

2). where there was evident partiality or corruption in the arbitrators, or either of them;

3). where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or

4). where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

And then there's the issue of Goodell switching the language in his award that upheld Brady's punishment. When Troy Vincent sent Brady his letter of discipline, the league cited Ted Wells' "at least generally aware" spiel as a means to justify the suspension. But in Goodell's award, the commissioner, for whatever reason, scrapped that terminology and determined Brady "approved of, consented to, and provided inducements in support of' 'a scheme to tamper with the game balls.'"

The NFLPA argues that Goodell has no CBA authority to justify a suspension on a different basis from that upon which it was imposed, citing the Adrian Peterson case.

Sports law expert Lewis Kurlantzick, a UConn professor and a Harvard graduate who has authored books on legal issues in pro basketball and baseball, believes this could fall under two separate grounds for vacatur.

"One would be that the parties has been significantly prejudiced because, by sort of shifting midstream, (Brady) has been denied the opportunity to address the scheme allegation," Kurlantzick said. "It's possible that would come under the third grounds. The other would be the possibility of a claim that (Goodell) has exceeded his powers -- that he only had the authority to rule on what had been given as the grounds for discipline, and now he's doing something else."

It is somewhat mind-blowing that Goodell's lawyers would allow him to implement new language into the arbitration award. It almost makes you think: There's no way Brady can win the case on these grounds, because there's no way a team of professional lawyers would open themselves up to such a possibility.

Almost.

And then you consider the other tactics used in Goodell's award, the 20-page decision that took nearly five weeks to produce. According to the commissioner, Tom Brady testified that he spoke to assistant equipment manager John Jastremski about the Super Bowl and only the Super Bowl in the days following the AFC championship game. According to the testimony from the June 23 appeal hearing, unsealed by Berman, Brady admitted to discussing the Super Bowl and the Deflategate allegations with Jastremski. Obviously.

Hey, let's make sure we break these balls in perfectly over the next two weeks.

OK, sounds good.

Alright man, I'll talk to you la--...oh wait, almost forgot, have you heard about Deflategate?

Goodell probably figured the testimony would never see the light of day, so he probably figured he could twist Brady's words to make it seem as though Brady was lying, and then use the manufactured lie as further means to justify his decision to uphold the suspension.

Here's the dumb part: NESN's Doug Kyed noticed the discrepancy in Goodell's award and Brady's testimony within about an hour of the transcript release.

You think Judge Berman would have caught on, too?

It remains to be seen whether Berman considers this grounds for vacatur. If he does, it would fall under the first category -- corruption, fraud or undue means. Kurlantzick believes it's a stretch for this to qualify.

"When they say an award was procured by corruption or fraud, they're at least in part talking about something like someone being bribed," Kurlantzick said. "I'm not sure, since a little thing, I'm not sure exactly how the courts have interpreted these."

He continued: "On the other hand, we do know they've interpreted them in a way that very few awards are vacated. When an award is procured by corruption, fraud or undue means, it's hard to get there, I think, even reading Goodell as badly as you want to read him, and I think there's ways to not read him that way."

Yes, there are several ways to read Goodell, and he doesn't come out looking good in any of them. He is at worst a shady commissioner with an agenda. He is at best borderline incompetent. The truth probably lies somewhere in the middle.

Standing tall behind the all-encompassing shield that is the CBA and the "integrity of the game" clause, Goodell and the NFL's lawyers curiously found it necessary to A). Prevent Jeff Pash, who co-led the investigation and edited the Wells Report, from testifying at Brady's appeal, B). Use new language to justify Brady's suspension and C). Lie about what Brady said while issuing the award.

The upside of preventing Pash from testifying must have been tremendous, because the downside is possibly losing the case in federal court.

And what was the upside of implementing new terminology to justify Brady's suspension? Berman called it a "quantum leap" to have gone from "at least generally aware" to "having consented to a scheme." Maybe Goodell felt there was a better chance of the court being OK with a quantum leap than there was of the court being OK with his decision to uphold a suspension based on "general awareness."

But consider: Despite the shift in terminology, Brady was still being disciplined under the "integrity of the game" umbrella. So why bother to change the wording? Seems highly unnecessary.

Goodell and the NFL's lawyers could be generally inept. Or they could be desperately trying to cover up deficiencies -- of the Wells Report and of Vincent's initial punishment -- in an inept fashion.

This has been a seven-month game of whack-a-mole for Goodell. Issues with the investigation and his role as arbitrator continue to pop up. The NFL cannot squash them all.

So Jeffrey Kessler has taken 19 pages worth of swings at the league. He won't connect on all of them. But for a Brady victory, only one needs to hit.